State of Himachal Pradesh vs Parveen Kumar

Sanjay Karol, J.—Assailing the judgment dated 20.02.2008, passed by Additional Sessions Judge (Special Judge), Fast Track Court, Kangra, H.P., in Sessions Case RBT No. 32-K/VII/07, titled as State of Himachal Pradesh Versus Parveen Kumar, State has filed the present appeal under the provisions of Section 378 of the Code of Criminal Procedure, 1973.

It is the case of prosecution that on 04.02.2007, SHO Mohinder Singh (PW. 10) accompanied by Onkar Chand (PW. 3) and Kartar Singh (PW. 5) was on patrol duty at Chambi Mor. There they received secret information that accused, who was carrying the contraband substance (charas), was coming from Shahpur side. After recording entry (Ex. PW. 3/A), Mohinder Singh constituted a raiding party inter alia comprising of independent witnesses Uttam Chand (PW. 1), Amar Singh (PW. 2) and Rajinder Singh (PW. 9). Accused, who was driving Motorcycle No. HP-54-6023, was apprehended same day at about 8.30 PM. Accused was apprised of his rights and after giving his personal search to the accused, Mohinder Singh searched the accused and from the right pocket of his pants polythene bag (Ex. P-6) containing smack (Ex. P-4) was recovered, which upon weighment was found to be of 22 grams. Two samples of 5 grams each (Ex. P-2 and P-3) were drawn and sealed with seal having impression ''M''. Remaining bulk parcel (Ex. P-1) was sealed with the very same seal. NCB form was filled up. Special report (Ex. PW. 7/A) was also sent through Constable Raj Kumar to the superior officer. Rukka (Ex. PW. 5/A) was taken to Police Station, Shahpur, on the basis of which FIR No. 17/07, dated 04.02.2007 (Ex. PW. 8/A) was registered, under the provisions of Section 17 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act), against the accused. Mohinder Singh deposited the contraband substance as also the seized articles with MHC Onkar Chand (PW. 8), who sent the sealed sample for chemical analysis to the Forensic Science Laboratory, Junga and report (Ex. PW. 10/A) obtained by the police. Also accused was arrested. With the completion of investigation, which prima facie revealed complicity of the accused in the alleged crime, Challan was presented in the Court for trial.

The accused was charged for having committed an offence punishable under the provisions of Section 17 of the NDPS Act, to which he did not plead guilty and claimed trial.

In order to establish its case, in all, prosecution examined as many as ten witnesses. Statement of the accused under Section 313 of the Code of Criminal Procedure was also recorded, in which he took plea of innocence and false implication. No evidence in defence was led.

Trial Court, after appreciating the testimony of prosecution witnesses acquitted the accused. Hence the present appeal.

We have heard M/s. B.S. Parmar, Ashok Chaudhary, learned Addl. AGs., assisted by M/s. Vikram Thakur and Puneet Rajta, learned Dy. AGs., on behalf of the State as also Mr. R.L. Chaudhary, Advocate, on behalf of the accused. We have also minutely examined the testimonies of the witnesses and other documentary evidence so placed on record by the prosecution. Having done so, we are of the considered view that no case for interference is made out at all. We find that the judgment rendered by the trial Court is based on complete, correct and proper appreciation of evidence (documentary and ocular) so placed on record. There is neither any illegality/infirmity nor any perversity with the same, resulting into miscarriage of justice.

It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution. Having considered the material on record, we are of the considered view that prosecution has failed to establish the essential ingredients so required to constitute the charged offence.

In Prandas Vs. The State, , Constitution Bench of the apex Court, has held as under:

"(6) It must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High Court has no power under S. 417, Criminal P.C., to reverse a judgment of acquittal, unless the judgment is perverse or the subordinate Court has in some way or other misdirected itself so as to produce a miscarriage of justice. In our opinion, the true position in regard to the jurisdiction of the High Court under S. 417, Criminal P.C. in an appeal from an order of acquittal has been stated in - AIR 1934 227 (Privy Council), in these words:

"Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice."

In the instant case, independent witnesses Uttam Chand (PW. 1), Amar Singh (PW. 2) and Rajinder Singh (PW. 9) have not supported the prosecution case at all. They were declared hostile and extensively cross-examined, yet nothing fruitful could be elicited from their testimony. The witnesses have denied being part of the raiding party in whose presence contraband substance was recovered.

It is a settled proposition of law that merely because a witness has turned hostile, his entire evidence cannot be termed to be unworthy of credence. It is for the Court to consider, whether as a result of contradiction, witness stands fully discredited or part of his testimony can still be believed. If the credit of a witness is not fully shaken, Court can rely upon that part of the testimony which appears to be creditworthy. But then the witnesses, in one voice, have stated that police called them to the Police Station and obtained their signatures, assuring that nothing would happen to them.

Prosecution version of having recovered the contraband substance from the conscious possession of the accused in the presence of independent witnesses, thus stands falsified, for there is nothing ini their testimony which would reveal that the witnesses have deposed falsely. Thus view other than the one which the prosecution wants us to believe has emerged on record.

It is a settled proposition of law that sole testimony of police official, which if otherwise is reliable, trustworthy, cogent and duly corroborated by other witnesses or admissible evidence, cannot be discarded only on the ground that he is a police official and may be interested in the success of the case. It cannot be stated as a rule that a police officer can or cannot be a sole eye-witness in a criminal case. It will always depend upon the facts of a given case. If the testimony of such a witness is reliable, trustworthy, cogent and if required duly corroborated by other witnesses or admissible evidences, then the statement of such witness cannot be discarded only on the ground that he is a police officer and may have some interest in success of the case. It is only when his interest in the success of the case is motivated by overzealousness to an extent of his involving innocent people; in that event, no credibility can be attached to the statement of such witness.

It is not the law that Police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption applies as much in favour of a police officer as any other person. There is also no rule of law which lays down that no conviction can be recorded on the testimony of a police officer even if such evidence is otherwise reliable and trustworthy. Rule of prudence may require more careful scrutiny of their evidence. If such a presumption is raised against the police officers without exception, it will be an attitude which could neither do credit to the magistracy nor good to the public, it can only bring down the prestige of police administration.

Wherever, evidence of a police officer, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and absence of some independent witness of the locality does not in any way affect the creditworthiness of the prosecution case. No infirmity attaches to the testimony of the police officers merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. Such reliable and trustworthy statement can form the basis of conviction.

[See: Govindaraju @ Govinda Vs. State by Sriramapuram P.S. and Another, ; Tika Ram v. State of Madhya Pradesh, (2007) 15 SCC 760; Girja Prasad (Dead) by LRs. Vs. State of Madhya Pradesh, ; and Aher Raja Khima v. State of Saurashtra, AIR 1956].

Apex Court in Tahir Vs. State (Delhi), , dealing with a similar question, held as under:-

"6. ....In our opinion no infirmity attaches to the testimony of the police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case."

In the instant case, we find Mohinder Singh (PW. 10) had definite information of the accused carrying contraband substance, so defined under the Act. Yet he did not comply with Section 50 of the Act, for the accused was not informed of his valuable right as is so mandatorily required. Recovery was effected from the body i.e. pants worn by the accused. Even though there is contradiction in the testimonies of police officials on this count but non appraisal of such rights to the accused render the prosecution case to be fatal.

A Constitution Bench of the Apex Court in State of Punjab versus Baldev Singh, 1999 (6) SCC 172, has clearly held that accused has a right to be made aware of his right of getting searched before a Magistrate or a Gazetted Officer. Having regard to the Miranda clause as enunciated by the Supreme Court of the Miranda vs. Arizona, 384 US 436, in Navjot Sandhu (supra), the Constitution Bench held that, although, such communication itself may not necessarily be made in writing but, as far as possible, such communication should be made in the presence of some independent and respectable persons witnessing the arrest and search. It was thereafter held as follows:

"57 On the basis of the reasoning and discussion above, the following conclusions arise:

(1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub-section (1) of Section 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing.

(2) That failure to inform the person concerned about the existence of his right to be searched before a gazetted officer or Magistrate would cause prejudice to an accused."

(emphasis supplied)

A three-Judge Bench of Supreme Court in Vijaysinh Chandubha Jadeja Vs. State of Gujarat, noticed the aforementioned dicta laid by the Constitution Bench in Baldev Singh (Supra) and in no uncertain terms opined that accused must be told of his right to be searched before a gazetted officer or a Magistrate.

Thereafter, the Apex Court in Man Bahadur Vs. State of H.P., after taking note of judgments held that not only consent of the accused should be taken but he must also be informed of his right of getting himself searched in the presence of the Magistrate.

This Court in Ashok Kumar versus State of H.P. Latest HLJ 2009 (HP) 557 has clearly held that if consent memo does not record that accused was informed of his right of being searched before a Magistrate or a Gazetted Officer, search is not in conformity with Section 50 of the Act.

In Ashok Kumar Sharma Vs. State of Rajasthan, , the apex Court held as under:

"8. We may, in this connection, also examine the general maxim "ignorantia juris non excusat" and whether in such a situation the accused could take a defence that he was unaware of the procedure laid down in Section 50 of the NDPS Act. Ignorance does not normally afford any defence under the criminal law, since a person is presumed to know the law. Indisputedly ignorance of law often in reality exists, though as a general proposition, it is true, that knowledge of law must be imputed to every person. But it must be too much to impute knowledge in certain situations, for example, we cannot expect a rustic villager, totally illiterate, a poor man on the street, to be aware of the various law laid down in this country i.e. leave aside the NDPS Act. We notice this fact is also within the knowledge of the legislature, possibly for that reason the legislature in its wisdom imposed an obligation on the authorized officer acting under Section 50 of the NDPS Act to inform the suspect of his right under Section 50 to be searched in the presence of a Gazetted Officer or a Magistrate warranting strict compliance of that procedure."

[Also see: Vijaysinh Chandubha Jadeja Vs. State of Gujarat, ; and Myla Venkateswarlu Vs. The State of Andhra Pradesh,

In view of the law laid down, accused must also be informed about his right and since this was admittedly not done even orally, there is violation of mandatory provisions of Section 50 of the Act, rendering the prosecution case to be fatal. This is in the given facts and circumstances.

That apart, we do not find the genesis of the prosecution case to have been proved on record, beyond reasonable doubt. According to Mohinder Singh (PW. 10), he had already left the Police Station for patrolling duty to Chambi Mor. Prior information was received by him not at the Police Station, but somewhere near Chambi Mor. Witness was unable to explain presence of independent witnesses Uttam Chand (PW. 1), Amar Singh (PW. 2) and Rajinder Singh (PW. 9) on the spot, for it is not the prosecution case that these persons are residents of that particular place. Also independent witnesses were not searched before searching the accused. Memo of personal search does not mention the articles contained or carried out by police party. From where the scales and weights of 5 grams were brought, has not been explained, for it is not the case of Mohinder Singh that he was carrying the same alongwith himself. Testimony of Onkar Chand (PW. 3) and Kartar Singh (PW. 5) also does not advance the case of prosecution. In any event, we find their version to be contradicted by independent witnesses. There is also contradiction with regard to exact time, which took in the completion of proceedings on the spot. According to Kartar Singh, it was so done, within 30-45 minutes. If that were so, then how was Rukka taken to the Police Station at 9.30 PM. Further on the question of link evidence, we do not find the prosecution case stands established, beyond reasonable doubt.

We do not find prosecution to have proved its case, beyond reasonable doubt, by leading clear, cogent, convincing piece of evidence with regard to recovery of contraband substance from the conscious possession of the accused. Contradictions in the statements of the police officials are glaring, material and relevant totally shaking the edifice of the prosecution story.

The Court below, in our considered view, has correctly and completely appreciated the evidence so placed on record by the prosecution. It cannot be said that judgment of trial Court is perverse, illegal, erroneous or based on incorrect and incomplete appreciation of material on record resulting into miscarriage of justice.

The accused person has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Md. Ankoos and Others Vs. The Public Prosecutor, High Court of A.P., , since it cannot be said that trial Court has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice, no interference is warranted in the instant case.

For all the aforesaid reasons, present appeal, being devoid of merit, is dismissed, so also the pending application(s), if any. Bail bonds furnished by the accused are discharged. Record of the trial Court be immediately sent back.